The Alfred Beit Foundation v Egar

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 19 February 2021
• Neutral Citation: [2021] IEHC 111
• Docket Number: [2020 No. 1875P]
• Court: High Court
• Date: 19 February 2021

BETWEEN

THE ALFRED BEIT FOUNDATION

PLAINTIFF

AND

DAVID EGAR

DEFENDANT

[2021] IEHC 111

David Keane

[2020 No. 1875P]

THE HIGH COURT

CHANCERY

RULING of Mr Justice David Keane delivered on the 19th February 2021

Introduction

1 On 29 January 2021, I gave judgment granting the Alfred Beit Foundation (‘the Foundation’) interlocutory injunctions against Mr Egar. This ruling should be read in conjunction with that judgment, which can be found under the neutral citation [2021] IEHC 65. In accordance with the joint statement made by the Chief Justice and the Presidents of each court jurisdiction on 24 March 2020 on the delivery of judgments during the COVID-19 pandemic, I invited the parties to seek agreement on any outstanding issues, including the costs of the application, failing which they were to file concise written submissions, which would then be ruled upon remotely unless a further oral hearing was required in the interests of justice.

2 The parties did not reach any agreement and, on 9 February, the Foundation electronically filed its written submissions. On 12 February, the last day of the two-week period allowed, Mr Egar emailed the court through the registrar to request an additional four weeks to file his. I replied on the same date, refusing that request on the grounds that it had not been properly made and that no reasons had been provided for it. That correspondence was copied to the legal representatives of the Foundation.

Form of order

3 The Foundation seeks an order pursuant to Order 50, rule 6(2) of the Rules of the Superior Courts (‘RSC’) reciting in curial part as follows:

‘IT IS ORDERED that from the 7th day next after service of this order and thereafter pending the trial of the action the defendant his servants or agents and all any persons acting with his authority or on his behalf or served with a copy of this order or on notice thereof:

1. be restrained from all and any trespass on the plaintiff's lands more particularly described in the schedule to the plenary summons and outlined in red on the map annexed to it, a copy of which map is annexed to this order;

2. be restrained from causing, occasioning, permitting or encouraging trespass by other persons on the said lands, whether or not by placing animals thereon;

3. do vacate the said lands, removing from them all and any of his property including, but not limited to, animals, gate locks and electric fences;

4. be restrained thereafter from entering on or occupying the said lands;

5. be restrained from any slander to the plaintiff's title to the said lands; and

6. be restrained from any interference with the plaintiff's use of the said lands and the plaintiff's relations with any other person or persons concerning the use of the said lands.’

4 The Foundation submits, and I accept, that the proposed terms reflect both the intent of the judgment on the scope of the interlocutory injunctions to be granted and the requirement that those injunctions must be certain and definite in their terms, a requirement explained in the following way by Lord Nicholls of Birkenhead for the United Kingdom House of Lords in Attorney General v Punch Ltd [2003] 1 AC 1046 (at 1055):

‘An interlocutory injunction, like any other injunction, must be expressed in terms which are clear and certain. The injunction must define precisely what acts are prohibited. The court must ensure that the language of its order makes plain what is permitted and what is prohibited. This is a well-established, soundly-based principle.’

5 Hence, I will make an order in the terms suggested.

The costs of the application

i. applicable rules and principles

6 Order 99, rule 2(3) of the RSC, as inserted by the Rules of the Superior Courts (Costs) 2019 (S.I. No. 584 of 2019), reproduces the former O. 99, r. 1(4A), which had been introduced by the Rules of the Superior Courts (Costs) 2008 (S.I No. 12 of 2008). That rule states in material part:

The High Court … upon determining any interlocutory application, shall make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application.’

7 Order 99, rule 3(1) of the RSC provides in material part:

‘The High Court, in considering the awarding of the costs of any action or step in any proceedings … in respect of a claim or counterclaim, shall have regard to the matters set out in section 169(1) of the [Legal Services Regulation Act 2015], where applicable.’

8 Section 169(1) of the Act of 2015 states:

‘A party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties, including—

(a) conduct before and during the proceedings,

(b) whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings,

(c) the manner in which the parties conducted all or any part of their cases,

(d) whether a successful party exaggerated his or her claim,

(e) whether a party made a payment into court and the date of that payment,

(f) whether a party made an offer to settle the matter the subject of the proceedings, and if so, the date, terms and circumstances of that offer, and

(g) where the parties were invited by the court to settle the claim (whether by mediation or otherwise) and the court considers that one or more than one of the parties was or were unreasonable in refusing to engage in the settlement discussions or in mediation.’

9 Thus, the rule is that the costs of an interlocutory application (including an interlocutory injunction application) must be awarded to the party who is successful against the party who is not successful, unless having regard to the nature and circumstances of the case and the conduct of the parties it is just to order otherwise, and an award of costs must be made unless it is not possible to do so justly at the interlocutory stage.

10 As Murray J explained in Heffernan v Hibernia College Unlimited Company [2020] IECA 121 (Unreported, Court of Appeal, 29 April 2020) (at para. 29), in respect of the former O. 99, r. 1(4A):

‘That provision reflected both the preference articulated in the case law pre-dating [its introduction] that those bringing and defending interlocutory applications should face a costs risk in the event that the Court determines that the...